Supreme Court New South Wales Medium Neutral Citation: R v Chalabian (No. 7) [2022] NSWSC 227 Hearing dates: 4 March 2022 Date of orders: 4 March 2022 Decision date: 04 March 2022 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: The Court gives a direction under s.22C(3A) Evidence (Audio and Audio Visual Links) Act 1998 that the Accused appear by audio-visual link for his criminal trial on 7, 8 and 9 March 2022. Catchwords: CRIME – jury trial – accused on bail – accused tested positive for COVID-19 and required to self-isolate for seven days – joint application by parties for accused to appear at trial by audio-visual link – application of s.22C(3A) Evidence (Audio and Audio Visual Links) Act 1998 – direction given for accused to appear at trial by audio-visual during period of self-isolation Legislation Cited: COVID-19 Legislation Amendment (Emergency Measures-Attorney General) Act 2020 Criminal Procedure Act 1986 Evidence (Audio and Audio Visual Links) Act 1998 Jury Act 1977 Jury Regulation 2015 Public Health (COVID-19 Self-Isolation) Order (No 4) 2021 Criminal Code (Cth) Cases Cited: R v Chalabian (No 5) (2022) NSWSC 174 Herron v Attorney General (NSW) (1987) 8 NSWLR 601 Chapman v Gentle (1987) 28 A Crim R 29 Mickelberg v R (No 3) (1992) 8 WAR 236 R v Scott [2021] NSWSC 1004 R v Warwick (No 26) [2018] NSWSC 1079 Texts Cited: --- Category: Procedural rulings Parties: Regina (Crown) Sevag Chalabian (Accused) Representation: Counsel: Ms T McDonald SC; Ms G Wright SC (Crown) Mr GA Brady SC; Mr A Williams (Accused) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Streeton Lawyers (Accused) File Number(s): 2018/216206 Publication restriction: --- Judgment 1. JOHNSON J: The trial of the Accused, Sevag Chalabian, commenced before a jury on Monday 21 February 2022. The Accused is standing trial upon a charge of money laundering under s.400.3(1) Criminal Code (Cth). 2. The estimate for the trial was about five weeks until the jury retire to consider a verdict. Because of that estimate, and having regard to the existence of the COVID-19 pandemic and the relaxed allowance for empanelling additional jurors under s.19(2) Jury Act 1977 (cf Clause 4A Jury Regulation 2015), a jury of 15 was empanelled. 3. As it happened, on the third day of the trial, the jury was reduced to 13 jurors. One member of the jury had tested positive for COVID-19 by way of a rapid antigen test and was discharged. A further member of the jury sought to be discharged from the jury for other health reasons: R v Chalabian (No 5) (2022) NSWSC 174. 4. Thereafter, the trial has proceeded with a jury of 13. 5. The jury is attentive, engaged and interested in the issues in the trial. They have attended from day to day, despite the existence in the last week of extreme weather conditions which may have served to deter a less interested jury. 6. An important Crown witness, Daniel Hausman, is giving evidence. His examination-in-chief has commenced, but with some considerable distance to go. He is an important witness in the trial and it is estimated that he would be giving evidence for about a week. 7. Yesterday, the Court was informed that the Accused had tested positive for COVID-19 by way of a rapid antigen test. The Accused had tested negative on 2 March 2022 as part of the routine rapid antigen testing undertaken upon all participants in the trial. The trial was not proceeding yesterday because of a Department of Corrective Services industrial dispute which prevented Mr Hausman being brought to Court. 8. The solicitors for the Accused informed the Court immediately of this development, and of the fact that the Accused was to have a PCR test to confirm the diagnosis. 9. This morning, confirmation has been given that Mr Chalabian tested positive on the PCR test. As a result, a Medical Clearance Notice under the Public Health (COVID-19 Self-Isolation) Order (No 4) 2021 issued directing Mr Chalabian to self-isolate for seven days from 3 March 2022 to 9 March 2022. The Notice (MFI 19) indicates that he can be released from self-isolation on 10 March 2022. 10. The Court was in a position where, in the absence of any other difficulty, the trial would have resumed today with Mr Hausman returning to the witness box for the continuation of his examination-in-chief. In circumstances where the Accused himself is unable to attend, with the agreement of the parties, the Court vacated the trial for today and listed the continuation of the trial for the morning of Monday 7 March 2022, when, if the trial is able to proceed, Mr Hausman will return to the witness box. 11. Faced with this development, the parties have considered what course may be taken to allow the trial to proceed without delay. A joint application has been made by the Crown and the Accused that the Court utilise the provisions in s.22C Evidence (Audio and Audio Visual Links) Act 1998 ("AVL Act") to direct that the Accused appear at the trial, at least between 7 and 9 March 2022, by audio-visual link. 12. Section 22C AVL Act provides as follows: "22C COVID-19 pandemic—special provisions (1) This section has effect for the prescribed period and prevails to the extent of any inconsistency with any other provision of this Act or any rules of court. Note. The Act continues to apply to appearances not referred to in this section and in proceedings prescribed by the regulations. Part 1A continues to apply to the appearance of witnesses to which subsection (4) does not apply and Part 1B continues to apply to the appearance of accused detainees to which subsection (3) does not apply. (2) The appearance of an accused person in any proceedings relating to bail is to take place by way of audio visual link unless the court otherwise directs. (2A) The appearance of an accused person (other than an accused detainee) in any proceedings other than physical appearance proceedings may take place by way of audio visual link if the court directs or the parties to the proceedings consent. (3) The appearance of an accused person in any physical appearance proceedings (other than proceedings relating to bail or proceedings prescribed by the regulations) may take place by way of audio visual link if the court directs. (3A) The appearance of an accused person (other than an accused detainee) in any physical appearance proceedings prescribed by the regulations under subsection (3) is not to take place by way of audio visual link unless the court directs or the parties to the proceedings consent. (4) The appearance in any proceedings (other than proceedings prescribed by the regulations) of a witness or legal practitioner representing a party may take place by way of audio visual link if the court directs. (5) A direction under subsection (2A), (3), (3A) or (4) may be made on the court's own motion or following the application of a party but only after the parties have had an opportunity to be heard on the matter. (6) The court is to make a direction under this section only if it is in the interests of justice, having regard to the following— (a) the public health risk posed by the COVID-19 pandemic, (b) the efficient use of available judicial and administrative resources, (c) any relevant matter raised by a party to the proceedings, (d) any other matter that the court considers relevant. (7) If an audio visual link is used the court must be satisfied that a party is able to have private communication with the legal representative of the party and has had a reasonable opportunity to do so. (7A) To avoid doubt, the appearance of an accused person in any proceedings under this section may take place by way of audio visual link from a place within or outside New South Wales, including a place outside Australia, if the court directs or the parties to the proceedings consent. (8) Nothing in this section requires or permits the use of an audio visual link if the necessary audio visual facilities are unavailable or cannot reasonably be made available. (9) In this section— prescribed period means the period— (a) starting on the commencement of this section, and (b) ending on— (i) 26 September 2021, or (ii) a later day, not later than 26 March 2022, prescribed by the regulations. witness excludes— (a) a government agency witness, and (b) an accused person giving evidence in proceedings concerning an offence alleged to have been committed by the accused person." 1. Section 22C(3A) was introduced, as part of the response to the COVID-19 pandemic, by the COVID-19 Legislation Amendment (Emergency Measures-Attorney General) Act 2020. In the second reading speech, the Attorney General, Mr Speakman, said, with respect to s.22C(3A), (5) and (6) (Hansard, Legislative Assembly, 12 May 2020): "The first bill before the house further amends the Evidence (Audio and Audio Visual Links) Act 1998 to include a new power to direct an accused person who is not in custody to appear via AVL. This power is subject to the direction being in the interests of justice, having regard to the public health risk posed by the COVID-19 pandemic, the efficient use of court resources and any other relevant matter. The requirement that AVL facilities be available and that the party must be able to communicate with their legal representative privately will also apply. For matters excluded from the COVID-19 AVL provisions by regulation, which are currently indictable trials and fitness hearings, the court will also be given the power to direct AVL for accused not in custody. In these matters, a presumption against AVL applies unless the accused consents or the court otherwise directs following the application of the same 'interests of justice' test." 1. Section 22C(2A) and (3) do not apply to this trial as the proceedings to which those provisions relate do not include proceedings on indictment, which are prescribed for the purpose of s.22C(3); Clause 4A Evidence (Audio and Audio Visual Links) Regulation 2015. 2. However, s.22C(3A) applies in this case. The Accused is on bail and so he is not an "accused detainee". The current proceedings, being a trial on indictment, are "physical appearance proceedings" as defined in s.3 AVL Act. 3. Accordingly, the appearance of the Accused is not to take place by way of audio-visual link unless the Court directs, or the parties to the proceedings consent. I have already noted that both parties to the proceedings consent to that approach and to the Accused appearing by way of audio-visual link. 4. For more abundant caution, however, I note that s.22C(5) states that a direction under s.22C(3A) may be made on the Court's own motion, or following the application of a party, but only after the parties have had an opportunity to be heard on the matter. The parties have been heard on the matter and, indeed, as I have noted, both consent to the direction being made. 5. Section 22C(6) provides that the Court is to make a direction under the section only if it is in the interests of justice, having regard to certain specified factors. 6. The phrase "interests of justice" is one of wide import: Herron v Attorney General (NSW) (1987) 8 NSWLR 601 at 613; Chapman v Gentle (1987) 28 A Crim R 29 at 32. The meaning of the phrase is to be considered in its statutory context. It has been said that the "interests of justice" include ensuring that the accused person has a fair trial, the public interest in the due administration of justice and the interests of the Crown and the community: Mickelberg v R (No 3) (1992) 8 WAR 236 at 251; Chapman v Gentle at 32. 7. It will be apparent immediately that the context of the interests of justice test under s.22C(6) is the existence of the COVID-19 pandemic and its impact upon court proceedings. 8. The term "interests of justice" has been considered, in related circumstances, where applications for a Judge-alone trial have been made under other particular provisions enacted because of the COVID-19 pandemic, including s.365 Criminal Procedure Act 1986. Adams J referred to a number of these decisions in R v Scott [2021] NSWSC 1004 at [53]-[55], where it was emphasised that the interests of justice extended to the public interest in the due administration of justice and the avoidance of delay in criminal trials. Although that context is different to this case, it still has some broad association with the present circumstances. 9. Section 22C(6) AVL Act requires the Court to have regard to a number of factors in applying the interests of justice test. 10. Firstly, under s.22C(6)(a), the public health risk posed by the COVID-19 pandemic. The Accused has tested positive for COVID-19. This trial is being conducted in what has been described as a "trial bubble" under the Protocol for Criminal Proceedings in the Supreme Court of New South Wales issued in January 2022. Great care is taken with respect to the protection of jurors, and other participants in the trial, from the risk of infection by COVID-19 by a number of measures. Clearly, the Accused in his present state constitutes a form of public health risk. Quite apart from that, he is presently prohibited from leaving his home under the Order issued with respect to him and dated today (see [9] above). That aspect operates strongly in favour of the use of audio-visual link. 11. The second factor, under s.22C(6)(b), is the efficient use of available judicial and administrative resources. This trial is in its third week. There is an attentive jury, as I have mentioned. There has been a break of two days because of the industrial dispute and the loss of today associated with the Accused's illness. The loss of a further three days next week would interfere significantly with the administration of justice. That aspect is very much in favour of the use of audio-visual link in this case. 12. Section 22C(6)(c) and (d) require the Court to consider any relevant matter raised by a party to the proceedings and any other matter that the Court considers relevant. The Court is satisfied that there are technical facilities available to the Accused, in conjunction with his lawyers, to allow him to appear by audio-visual link in an appropriate way in the trial. Further, the interests of the Accused can be appropriately protected so that, if he does need to have a private communication with his lawyers, that can be facilitated by means of a short adjournment, or such other means as may be suggested so that s.22C(7) is satisfied in this case. 13. If the Accused was sufficiently unwell as to interfere with his capacity to follow the trial, then that would be a matter for separate application by his counsel. That, of course, can be a problem whether the Accused is in Court or appearing by audio-visual link. However, the Court can guard against any unfairness in the event that such a scenario presented itself. I should observe that the issue having developed on a Thursday, the Accused will have four clear days prior to Monday. It is hoped that his health will be in a reasonable state on Monday to allow the trial to continue with him appearing by audio-visual link. 14. I should note, finally, that s.22C has effect for a prescribed period. That prescribed period is defined in s.22C(9) as being a date not later than 26 March 2022. This ruling is being made on 4 March 2022 so there is no doubt that s.22C operates in the present context. 15. I should indicate, however, that there may be a basis for the use of audio-visual link with respect to the Accused in any event if both parties consent, even if s.22C did not apply. The general law principles with respect to waiver of the right of an accused person to be physically present during a trial were summarised by Garling J in R v Warwick (No 26) [2018] NSWSC 1079 at [20]-[30]. As his Honour observed at ([20]-[30]), there were other provisions in the AVL Act which provided a pathway for Mr Warwick to appear by audio-visual link in that trial. Those provisions, Garling J observed, complemented the common law exception to the general principle requiring an accused person to physically attend. 16. It is not necessary, for the purpose of this application, to consider the common law principles and their operation in the present context. It is sufficient to note that a clear basis has been demonstrated for the use of s.22C(3A) in this case. 17. It may be that the fact that the parties have consented did not require the Court to give any extended reasons as to the operation of this section. However, in the present climate, where many criminal trials are being affected in one way or another by the COVID-19 pandemic, which can strike juries, parties, witnesses, barristers, solicitors and, for that matter, Judges, their staff and other Court staff, it is helpful to gather together the relevant principles in the event that another accused person in another trial finds him or herself in the same position as the Accused in this trial. 18. I give a direction under s.22C(3A) Evidence (Audio and Audio Visual Links) Act 1998 that the Accused appear by audio-visual link for his criminal trial on 7, 8 and 9 March 2022. ********** Amendments 21 March 2023 - Publication restriction lifted - judgment published. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2023